Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF LONDON BOROUGH OF BROMLEY
(CLAIMANT)
-v-
FIRST SECRETARY OF STATE
(1ST DEFENDANT)
SECRETARY OF STATE FOR TRANSPORT
(2nd DEFENDANT)
BIGGIN HILL AIRPORT LIMITED
(3rd DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
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190 Fleet Street London EC4A 2AG
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MR T STRAKER QC AND MR J STRACHAN (instructed by THE CHIEF LEGAL OFFICER, LONDON BOROUGH OF BROMLEY) appeared on behalf of the CLAIMANT
MS N LIEVEN (instructed by THE TREASURY SOLICITOR) appeared on behalf of the 1st and 2nd DEFENDANTS
THE THIRD DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
J U D G M E N T
(As Approved by the Court)
Crown copyright©
Monday, 9th June 2003
MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 (the Act) to quash a decision by the Secretaries of State to grant planning permission for the development of a very substantial aircraft hangar in the metropolitan Green Belt at Biggin Hill airport.
The decision is contained in a decision letter, dated 17th January 2003. It was taken by the two Secretaries of State because the applicant for planning permission, Biggin Hill Airport Limited (BHAL), is a statutory undertaker for the purposes of the Act. BHAL has a long lease of the airport, most of which is in the metropolitan Green Belt, from the council.
Normally, the erection of an aircraft hangar within a "relevant airport" such as Biggin Hill, by a "relevant operator" such as BHAL, would have been permitted development under the Town and Country Planning (General Permitted Development) Order 1995. But the council made and the Secretary of State confirmed, an article 4 direction withdrawing permitted development rights.
BHAL then made an application for planning permission which was refused on three grounds, relating to inappropriate development in the Green Belt and harm to an adjacent conservation area. BHAL appealed against that refusal and an Inspector appointed by the Secretary of State held a public inquiry over five days, beginning on 30th July 2002.
In his report to the Secretary of State, dated 27th September 2002, the Inspector recommended that planning permission should be refused. Despite the size of the proposed hangar the Inspector concluded that the degree of harm to the character and appearance of the conservation area would not have been sufficient, in its own right, to justify a refusal of planning permission, if it had been established beyond doubt that the appeal site was the only possible location for the proposed hangar.
The Secretaries of State agreed, but as they concluded that the appeal site was currently the only possible location for the hangar, they did not consider that a refusal of planning permission could be justified on the basis of impact on the conservation area. So, all turned on the Green Belt objection.
It was acknowledged by BHAL that the proposed development was inappropriate development in the Green Belt. Thus, the issue between BHAL and the council was whether there were very special circumstances which would justify the grant of planning permission for such inappropriate development in the Green Belt. The council maintained, in summary, that the needs of the proposed occupier of the hangar, Jet Aviation, the Fixed Based Operator (FBO) at the airport, were not such as to amount to very special circumstances. In any event, there were alternative sites within the airport which were either wholly or partly outside the Green Belt, and/or where airport related development was to be encouraged in accordance with development plan policies.
The Inspector did not accept the first of those arguments. He concluded that the operational needs of Jet Aviation could amount to very special circumstances, but only:
"... if there are no other acceptable and practicable locations within the operational areas of the airport where the development could take place." (11.3.9)
The Inspector considered the alternative locations that had been in issue between the parties at the Inquiry. He rejected sites A and B, and D and E. Site C is the appeal site. His conclusions in relation to these sites were accepted by the Secretaries of State. The Secretaries of States' conclusions in relation to sites A, B and E are not challenged in these proceedings.
On behalf of the council, Mr Straker QC submits that the Secretary of State and the Inspector both erred in rejecting site D as an alternative location. In relation to site D the council's contention is recorded in paragraph 6.2.46 of the Inspector's report:
"Option D: West Camp. West camp is potentially available for this hangar development. For the appellant it was agreed that it is an acceptable location in principle. No evidence is produced to show that this site is not available. Indeed, those acting for the appellant expressly chose not to provide such evidence as they had in relation to the availability of this site. Accordingly, there is no evidential basis upon which the appellant can assert that this is not an available alternative location."
BHAL's response is summarised by the Inspector in the following terms in paragraph 7.2.24:
"West Camp is under the ownership and control of [Formula One Administration] FOA who have their own outstanding proposals for the area which are the subject of a resolution to grant on the part of the Council but proposed to be conditioned to occupancy personal to that company. There is no evidence that West Camp is available."
In response to these rival contentions the Inspector said this in paragraph 11.3.13:
"I do not accept the Council's contention that West Camp is potentially available. (6.2.36) It is not part of the land leased by BHAL, and does not fall within the boundary of the airport. The relevant area, including hangar aprons and a length of taxiway Hotel, are in the ownership/control of FOA. Insofar as this is an operational taxiway, and it was in use as such at the time of my site inspection, the fact that it is not under the control of BHAL and that its use as a taxiway by aircraft is only by agreement with FOA, is somewhat surprising. The significance of this situation for airport operations relates to the restricted clearance along taxiway Alpha in the vicinity of East Camp which prevents the use of that taxiway by larger aircraft. While BHAL's wish that this part of West Camp should be reintegrated with the remainder of the airport is understandable, that is not in BHAL's gift. Unless and until BHAL secure an interest in that area they will be unable to make the site available to Jet Aviation for FBO purposes. I draw no inference from the fact that BHAL's company witness was not prepared to comment on confidential discussions it may or may not have had with FOA.(6.2.46)."
The Inspector then dealt with the planning permission that had been granted to FOA and concluded in paragraph 11.3.15:
"... that site D at West Camp is not a realistic alternative site for an FBO in the light of its present ownership, and there is currently no evidence to indicate that that situation will change in the near future."
Mr Straker submits that in accepting that conclusion in paragraph 9 of their decision letter, the Secretaries of State erred because they failed to consider the potential availability of site D through negotiation between BHAL and the site owner.
Alternatively, they failed to draw adverse inferences from BHAL's failure to explain what negotiations they had had with the site owner or failed to give proper or intelligible reasons as to why they had not drawn any inferences from BHAL's failure to answer any questions about contractual negotiations with FOA.
Alternatively, it is submitted that the Secretaries of State failed to have regard to or to apply the policy in paragraph 3.2 of PPG2 which requires BHAL to demonstrate that site D was not an available option.
I am unable to accept those submissions. So long as site D remained outside BHAL's ownership it was not a realistic alternative. Having heard the evidence the Inspector and the Secretaries of State were entitled to conclude that there was no evidence to indicate that that situation would change in the near future.
Plainly both the Inspector and the Secretaries of State did have regard to the potential for the site to become available as a result of negotiation between BHAL and the site owner. It was for the Inspector who had heard the witness for BHAL give evidence and be cross-examined, to decide what, if any, inferences he thought it appropriate to draw from the fact that the witness was not prepared to comment on confidential discussions that BHAL "may or may not have had" with FOA.
The Secretaries of State were entitled to accept the Inspector's assessment as to whether any inference should or should not be drawn from that unwillingness to comment.
I do not accept that either the Inspector or the Secretaries of State were required to give reasons as to why they did not think it appropriate to draw an inference from the fact that the company's witness was not prepared to comment about these matters. The Secretaries of State are required to give proper and intelligible reasons for their decision. They have done so. They are not required to give reasons for reasons, which is what, in effect, is being demanded of them by Mr Straker.
I turn to the council's principal ground of challenge which relates to the availability of alternative locations F and G.
Runway 11/29 lies to the north of sites F and G. The Inspector concluded that if runway 11/29 continued in operation:
"Neither option represents an operationally practical location for the appeal proposal."(11.3.20)
The determining issue was, therefore, whether runway 11/29 would remain operational.
The council argued that there was a very good chance that it would not. Its case, in this respect, is summarised by the Inspector in paragraphs 6.2.56 to 6.2.58:
"There is no evidence upon which the Secretaries of State can properly be satisfied that Options F and G are not available alternative locations for Jet Aviation's operations. Indeed, if the Airport's previous correspondence is to be believed and to carry any weight, this was at one stage the Airport's own suggested form of development.
The Airport's Objectives for runway 11/29." (6.2.56)
Paragraph 6.2.57 sets out in some detail the council's understanding of BHAL's evidence with respect to the closure of runway 11/29.
Having set out a number of factors in sub-paragraphs A to I, the Inspector summarised the council's case thus in paragraph 6.2.58:
"From the above there is no basis upon which the Secretaries of State can be satisfied that this area is not an available alternative location for the development requirements of Jet Aviation. The company are operating from the Airport currently and wish to improve their facilities for the future. There is no evidence that the time-scale for such development is essential. The Airport believes Runway 11/29 to be economically unsustainable in the long term. The Airport has yet to carry out any cost/benefit analysis of its closure, including the benefit of allowing Jet Aviation and others to redevelop the freed up area. Any such closure could be brought about at any stage by the CAA in any event. Without the cost/benefit analysis performed, the Secretaries of State cannot be satisfied that this area is not available. However, even on a basic cost/benefit analysis, it is clear that the cost of repairs of the runway far outstrips the revenue it is creating. Insofar as the Airport requires another runway for cross-wind occasions, this is very rare (3 per cent) of movements, and no evidence is provided as to the ability of the 3rd runway to provide such facilities (if they are economically sustainable). The overall longer term development strategy is to close this runway. There is therefore no basis in planning terms for this potentially permanent encroachment into the Green Belt (one of the highest protective designations possible) when such encroachment could be avoided by development in another area subject only to removal of economically unsustainable existing development in that area."
In response BHAL maintained:
"The solutions advanced on behalf of the Council lead to the loss of runway 11/29, which BHAL wish to maintain for as long as possible because of its use by businesses involved in pilot training." (7.2.26)
Following the passage in paragraph 11.3.20, to which I have already referred, the Inspector concluded:
"However, the continued use of runway 11/29 as a runway is uncertain for several reasons including its impact on BHAL revenues, and with this its continued acceptability to CAA, and potential future development options."
Paragraph 11.3.21 amplifies the reasons for this uncertainty as follows:
"The runway is acknowledged to be in poor condition requiring regular maintenance in the form of 'patching' to maintain it at a standard acceptable to CAA for continued use for takeoffs and landings by light aircraft. The full rebuilding of the runway would cost of the order of £2 million, while slurry seal 'patching' repairs, which would provide a somewhat shorter life to the runway, would cost of the order of £250,000. These costs compare with direct annual income from landing fees from mainly training aircraft using this runway of £25,000."
In 11.3.22 the Inspector referred to BHAL's justification for its choice of siting for a passenger terminal as having:
"... included both the poor condition of runway 11/29 and the continued availability of runway 05/23 as an emergency runway for light aircraft in the event of heavy cross-winds on runway 03/21. For the appellant it was stated that the closure of runway 11/29 was not dependant on the future provision of a passenger terminal. In the long term its retention was economically unsustainable, although BHAL are not looking to close it in the short term. The company also anticipate that if CAA becomes further concerned about the state of the runway it would seek to reduce its serviceable length, rather than close it in its entirety. It is the company's position that this runway is of particular benefit to those companies who provided light aircraft pilot training as it allows those business to continue to train in a variety of weather conditions.(7.2.26) However, there is clearly uncertainty as to the future use of 11/29 as an operational runway in the short to medium term."
The Inspector then said in 11.3.23 that whilst it was understandable that BHAL might want to keep all its options open and attempt to satisfy all of its customers for as long as it was able to do so, that did not, in the Inspector's view, amount to a very special circumstance justifying otherwise inappropriate development in the Green Belt.
The Inspector continued in 11.3.24:
"Although I have accepted that there is uncertainty as to the future of runway 11/29, I do not accept the Council's assessment that BHAL has a strategic objective to close this runway. I am satisfied, however, that if BHAL's long-term aspirations for a greater aviation role for the airport were forthcoming, then the runway could close, if operationally necessary, irrespective of maintenance costs or CAA certification concerns at that time."
11.3.25:
"The uncertainty as to the future role of Biggin Hill in supplying aviation facilities in the Region over and above its current role, has implications for the availability of land within the airport for other aviation uses, particularly business aviation. Against the background of all these uncertainties it is not possible to say that the appeal site is the only site within the airport boundary that will be suitable for the location, in both planning and operational terms, of a hangar of the size of the appeal proposal. For example, the closure of runway 11/29 would remove obstacle limitation surface constraints at the eastern end of South Camp..."
11.3.26:
"It is particularly unfortunate for Jet Aviation that this proposal has come forward at a time of such uncertainty. That company understandably wishes to proceed with the development of its 'commercial offer' in what is acknowledged to be a competitive industry, but this does not amount to sufficient reason for allowing this appeal on the grounds of very special circumstances when there remains potential for other land to come forward which more closely accords with the UDP policy at South Camp."
I should add at this point that sites F and G are located at the eastern end of South Camp.
The Inspector then referred in 11.3.28 to the Department of Transport's consultation exercise in relation to the future of Air Transport Policy, and said that the White Paper would be likely to set out the anticipated role that Biggin Hill would play in the provision of aviation facilities in the region, and that it would be for BHAL to determine the future of runway 11/29 in the light of those conclusions.
The Inspector went on to say this:
"It is clear that its permanent retention as an operational runway could not be economically justified on the basis of the landing and takeoff revenues it generates, although I accept that it has wider 'flexibility' benefits for those companies and pilots using light aircraft."
The Inspector drew the threads together in 11.3.29:
"The time-scales for these decisions would appear to be relatively short term, whereas decisions relating to the provision of the major hangarage for the principle FBO at Biggin Hill concern development that, when built, will be in place for many years. In reaching these conclusions I am not suggesting that runway 11/29 should close, but rather that such a significant decision as a development of the scale of the appeal proposal needs to be taken in the context of the overall development of aviation facilities at Biggin Hill."
The Inspector's overall conclusion on this issue is to be found in 11.3.38:
"My overall conclusion on this issue is that the very special circumstances necessary to justify permitting inappropriate development in the Green Belt, in this case the non-availability of an other more appropriate location within the operational airport, have not been established beyond reasonable doubt, and that this uncertainty amounts to sufficient reason for a refusal of planning permission on the grounds of conflict with the adopted UDP, and in particular, Policies G2, BHA2 and BHA8, and I shall recommend accordingly."
Thus it will be seen that, but for the view that he had reached in relation to that uncertainty, the Inspector would have been satisfied that very special circumstances did exist which would have justified permitting inappropriate development in the Green Belt.
The uncertainty referred to by the Inspector related both to the future of runway 11/29 and to the role that Biggin Hill would play in the provision of aviation facilities in the future.
The Secretaries of State in their decision letter endorsed the Inspector's approach:
"... that very special circumstances can only support the appeal proposal if there are no other acceptable and practicable locations within the operational areas of the airport where the development could take place."
Having dealt with sites A, B, D and E, and agreed with the Inspector's conclusions as to the non-availability of those sites, the Secretaries of State turned to sites F and G in paragraph 10 of the decision letter:
"With respect to sites F and G at South Camp, the Secretaries of State note that the Inspector considers that in the context of the continued use of runway 11/29, neither option represents an operationally practical location for the appeal proposal. (11.3.20) The Secretaries of State consider this to be significant. They observe that there is uncertainty over the continued use of runway 11/29, but that BHAL are not looking to close it in the short term (IR 11.3.22). They accept that the appeal proposal has come forward at a time of uncertainty as to the future role of Biggin Hill (11.3.26) and, had there been clearer evidence of potential for other land to come forward which more closely accords with the UDP policy at South Camp, they would have accepted that the company's wish to proceed with the development in what is acknowledged to be a competitive industry would not amount to sufficient reason for allowing this appeal on the grounds of very special circumstances. They accept there is an argument that decisions about development on the scale proposed in the appeal ought to be taken into the context of the overall development of aviation facilities at the airport (IR 11.3.29)."
So far, so good, from the council's point of view. The council's complaint is founded on the next paragraph in the decision letter, paragraph 11, which was as follows:
"However, the proposal has to be considered in the light of the circumstances currently applying, and on the basis of these, the Secretaries of State are not satisfied that there is currently a suitable site available within the airport, other than the appeal site, on which to locate the hangar. The Inspector has concluded (IR 11.3.38) that very special circumstances necessary to justify permitting inappropriate development in the Green Belt, in this case the non-availability of another more appropriate location within the operational airport, have not been established beyond reasonable doubt. However, as the Secretaries of State are not satisfied that an alternative site for the hangar is currently available within the airport, they do not agree with this conclusion."
For the sake of completeness it is sensible to read paragraphs 12 and 13 of the decision letter before turning to Mr Straker's submissions:
The Secretaries of State note that the UDP objective for Biggin Hill referred to in paragraph 6 above in addition to seeking to protect the Green Belt, makes provision for a gradual improvement of the airport, in terms of the type of operation, its appearance and its facilities, including controlled growth of business aviation. They agree with the Inspector (11.3.4) that the appeal proposal in terms of its size is not unreasonable or excessive in the context of the business aviation industry and it is not excessive in the context of Biggin Hill Airport as a recognised centre of business aviation. They further share his view (11.3.9) that the scale of the appeal proposal is reasonable in operational terms and that it will contribute to the longer term financial security of the Airport.
Accordingly, on the issue of whether there are very special circumstances, the Secretaries of State have concluded that there is an operational need for the proposed development and that the absence of a reasonable alternative location for the appeal proposal and the fact that there are a number of other matters supporting the development as set out above, amount to very special circumstances which outweigh the harm to the Green Belt."
Mr Straker submits that the Secretaries of State failed to ask themselves the right question, which would have been: has it been shown to us that we can expect the justification for this development to be present at the time when it might be begun? He points to condition 1, which is in the standard form, requiring the development to be begun within five years, and submits that the Secretaries of State did not ask themselves the question: what do we expect the position to be in 2008?
I accept Miss Lieven's submission that it is not surprising that the Secretaries of State did not ask themselves those questions, because they are not to be found in either PPG2 or the relevant policies in the development plan.
The proper interpretation of Green Belt policy has been the subject of a not inconsiderable amount of litigation. It is unnecessary to further complicate the policies by placing glosses upon them. I am satisfied that Mr Straker's formulations are an unwarranted gloss upon the plain words of the policies.
But that is not the end of the matter because he accepted that the council's real complaint was that the Secretaries of State were, in effect, saying in paragraph 11 of the decision letter: "no suitable site is available at this precise moment and that is all that matters."
In effect, he submits that the Secretaries of State were ignoring the potential for sites within the airport to come forward in an uncertain future, and thus failing to have regard to a most material consideration.
If that was a fair interpretation of what the Secretaries of State were saying in this decision letter, then I would accept that the Secretaries of State would have been in error. I do not discount the possibility that there may be some cases when, for very particular reasons, which one would expect to see spelled out in some detail in a decision letter, it might be appropriate for the decision taker in a Green Belt case to confine his or her attention simply to the immediate present, and to discount any question of future potential. Such cases will be rare and Miss Lieven does not submit that this is such a case. She accepts that the potential for suitable alternative sites to come forward, within the airport, in the future, was a material consideration. She submits, however, that it is clear, if one reads the decision letter as a whole, and in particular if one reads paragraphs 10 and 11 together, that the Secretaries of State did have regard to future potential, and did not confine their attention simply to the present.
The Secretaries of State say in terms in paragraph 10:
"... had there been clearer evidence of potential for other land to come forward which more closely accords with the UDP policy at South Camp, they would have accepted that the company's wish to proceed with the development in what is acknowledged to be a competitive industry would not amount to sufficient reason for allowing this appeal on the grounds of very special circumstances."
Thus, when the Secretaries of State refer in paragraph 11 to "the circumstances currently applying" they are not confining their attention to the immediate present and entirely discounting the future. Paragraphs 10 and 11 have to be read together. Having looked at the future in paragraph 10, it defies common sense to believe that the Secretaries of State would then discount it entirely in the following paragraph.
I accept those submissions. The decision letter has to be read as a whole. If one does so, one finds that there was a very narrow difference of planning judgment between the Secretaries of State and their Inspector. There was no disagreement that sites F and G were not an operationally practical location for the development, in the context of the continued use of runway 11/29. There was no disagreement that there was uncertainty over the continued use of runway 11/29. There was no disagreement that there was uncertainty about the future role of Biggin Hill. The Secretaries of State accepted that in the light of this uncertainty about the future, there was indeed an argument that decisions about development on the scale proposed in the appeal ought to be taken in the context of the overall development of aviation facilities at the airport. (Paragraph 10).
But whereas the Inspector attached less weight to present non-availability, and greater weight to the uncertainties which gave rise to the possibility of alternative sites becoming available in the future, the Secretaries of State chose to attach greater weight to the current non-availability of a suitable alternative site. If the final sentence of paragraph 11 of the decision letter had said in terms, "However, the Secretaries of State attach greater weight to the fact that an alternative site for the proposed hangar is not currently available..." there could have been no possible complaint that the Secretaries of State had adopted an erroneous approach.
It is pre-eminently a matter of planning judgment as to whether in the circumstances of any particular case the decision taker should give greater weight to an immediate lack of an alternative site, or greater weight to the potential for an alternative site to emerge in the course of an uncertain future.
Mr Straker complains that the Secretaries of States' reasoning is inadequate. Firstly, the decision letter does not state, in terms, that the Secretaries of State have given greater weight to present non-availability, and in any event if they have, they have not explained why they chose to give greater weight to the present non-availability of an alternative site.
Decision letters have to be read not merely as a whole, but also in a common sense way. In my judgment, it is not a common sense interpretation of paragraph 11 of the decision letter, to read it as though the Secretaries of State, having referred in terms to the future in paragraph 10, and having acknowledged that there was an argument that decisions about development on the scale proposed ought to be taken in the context of the overall development of aviation facilities at the airport, then proceeded, in the following paragraph, to discount entirely any consideration of future potential.
The common sense interpretation of paragraphs 10 and 11 of the decision letter, when read together, is that advanced on behalf of the Secretaries of State by Miss Lieven; that the Secretaries of State disagreed with the Inspector because they attached more weight than he had done to the present lack of an available suitable alternative site.
That does not mean that they failed to have regard to the possibility that an alternative site within the airport might become available in an uncertain future. They simply chose to give less weight to that consideration than did the Inspector.
I do not accept that they were obliged to explain why they chose to give greater weight to present non-availability than to future potential availability.
As I have sought to explain above, the Secretaries of State were obliged to give proper adequate and intelligible reasons for their decision. They were not obliged to give reasons for reasons. This is a very careful decision letter which leaves the reader in no doubt as to why the Secretaries of State disagreed with their Inspector, and why, therefore, they chose to grant planning permission.
Accordingly, I reject the council's submissions in respect of sites F and G.
That leaves the council's third complaint, which is that the Secretaries of State failed to impose a personal condition limiting the grant of planning permission to occupation by Jet Aviation.
Before the Inspector the council had argued that if planning permission was to be granted, contrary to its reasons for refusal, then the conditions should include a condition making the permission personal to Jet Aviation, and a further condition that the hangar should be demolished on Jet Aviation ceasing to occupy it.
The Inspector agreed with the first of these suggestions, but not with the second. In 11.6.7 he said:
"Condition 8 would make occupation of the building personal to Jet Aviation. This was acceptable to the appellant in principle. In circumstances where the permission is to be granted on the basis of very special circumstances relating to a particular company, in this case Jet Aviation, then such a condition is entirely appropriate to prevent the building being occupied in the first instance by a company who may not be able to establish those, or other very special circumstances, that justified its occupation of the development. I am satisfied that condition 8 should be imposed."
11.6.9:
"I consider a condition requiring the demolition of the hangar in the event of Jet Aviation ceasing to occupy the premises to be unacceptable. From the outset such a condition may prevent conventional funding. It would also be contrary to that part of the Council's objective for Biggin Hill of achieving the gradual improvement of the airport in terms of the type of operations, its appearance and its facilities, including controlled growth of business aviation. The Airport would benefit from the presence of an FBO, initially to be Jet Aviation but, in the event of Jet Aviation ceasing to occupy the hangar at some date in the future, BHAL would undoubtedly wish to see another FBO operating from the airport. The appeal building would also be a costly, and hence valuable, permanent structure and to require its demolition solely on the basis that its original occupier no longer wished to occupy it would amount to a wanton waste of resources that is totally contrary to the principles of sustainability."
The Secretaries of State dealt with this matter in paragraph 16 of their decision letter:
"The Secretaries of State agree with the Inspector's conclusions regarding conditions (IR 11.6.2-11), other than in the case of proposed condition 8 which would make the occupation of the building personal to Jet Aviation. The Inspector is satisfied that this condition, should be imposed (IR 11.6.7) but, in the Secretaries of States' view, such a condition would be unreasonable. Among the factors in support of the proposal there are a number that are not personal to the appellant, including the lack of an alternative site and the UDP objective of securing a gradual improvement of the airport. Paragraph 94 of the Annex to Circular 11/95 states that if a service, or the employment it generates, is needed in an area, there is no planning reason why it should not be provided by one firm rather than another. Since the proposed development is not one that could readily be used other than as a hangar, without a further planning permission, the Secretaries of State do not consider that a restriction on occupancy is justified..."
It is submitted on behalf of the council that the Secretaries of State erred in this respect because the particular requirements of Jet Aviation, for a particular number and size of aircraft, dictated the size of the hangar, and that in turn ruled out a number of the alternative sites, and that in turn gave rise to the very special circumstances accepted by the Secretaries of State.
The starting point must be the policy advice in Circular 11/95 at paragraphs 93 to 95. It is unnecessary to set out that advice in any detail. It is sufficient to say that personal or commercial occupancy conditions for permanent buildings, and this would be a very substantial permanent building, are very much the exception rather than the rule.
There can be no doubt that the Secretaries of State have considered whether or not to impose such a condition. Whether such a condition was justified, exceptionally, in the light of the advice in Circular 11/95, was very much a matter of planning judgment for the Secretaries of State.
Unless the council can demonstrate that they have failed to have regard to some relevant factor, or had regard to an irrelevant factor, or in any some way misdirected themselves, then whether such a condition should be imposed was a matter for them.
In my view there is no error of law and no misdirection in paragraph 16 of the decision letter. The Secretaries of State were right to say that there were a number of factors in support of the proposal, which were not personal to Jet Aviation.
I have set out the terms of paragraph 12 of the decision letter above. The Secretaries of State agreed with the Inspector that in the light of a policy which provided for the gradual improvement of the airport, the appeal proposal, in terms of its size, was not unreasonable or excessive in the context of the business aviation industry, or in the context of Biggin Hill airport as a recognised centre of business aviation. They considered that the scale of the proposal was reasonable in operational terms, and that it would contribute to the longer term financial security of the airport. There was no alternative site for a hangar of that size.
It is perfectly true that a hangar of that size was required by Jet Aviation, and that it was the FBO at Biggin Hill. But as the Inspector concluded in paragraph 11.6.9:
"The Airport would benefit from the presence of an FBO, initially to be Jet Aviation but, in the event of Jet Aviation ceasing to occupy the hangar at some date in the future, BHAL would undoubtedly wish to see another FBO operating from the airport."
If there was to be no condition requiring demolition of the hangar upon it ceasing to be occupied by Jet Aviation, it would have been unreasonable to impose a condition making the permission personal to Jet Aviation. Mr Straker mentioned the possibility of a condition limiting first occupation to Jet Aviation, but whether or not that was appropriate was a matter for the Secretaries of State.
They were entitled to point to the general advice in paragraph 94 of the Annex to Circular 11/95, that:
"If a service... is needed in an area [in the present case, if an FBO activity is needed at Biggin Hill] then there is no planning reason why it should be provided by one firm rather than another."
Thus, if Jet Aviation was unable to occupy the hangar, there was no reason why an FBO service should not be provided from the hangar by another operator.
It has to be remembered that this is not a building such as an office or industrial building, which is readily useable by a wide range of occupiers. Detailed permission has been granted for a very substantial purpose-built aircraft hangar. As the Secretaries of State observed, it could not be used for any other purpose without a further planning permission.
In the light of all these considerations it was for the Secretaries of State to decide whether, exceptionally, a permission ought to have been made personal to Jet Aviation. They were entitled to conclude that such a condition would be unreasonable in all the circumstances.
For these reasons I am unable to accept the council's three grounds of challenge to the Secretaries of States' decision letter, and this application must be dismissed.
Yes, thank you.
MISS LIEVEN: My Lord, may I say I seek my costs. We have served a schedule of costs on the other side, they have not served one upon us so, we are slightly in the dark on that. But as far as ours is concerned the sum sought is £5,919. Does your Lordship have that?
MR JUSTICE SULLIVAN: I do not know that I was given a summary, but is there any argument about it Mr Straker?
MR STRAKER: My Lord, there is argument only about one aspect of it, which if correct would serve to reduce it to a figure of 4,266.
MR JUSTICE SULLIVAN: Right, do you want to tell me what it is? Would I be assisted, since I seem to be the only one in the room who does not actually have a summary of the costs?
MR STRAKER: Your Lordship would be assisted by having it.
MR JUSTICE SULLIVAN: You cannot object to the principle obviously, just the detail?
MR STRAKER: No, not at all.
MR JUSTICE SULLIVAN: Right.
MR STRAKER: The point is this, it is the work done on documents, page 2, item 1, box (d).
MR JUSTICE SULLIVAN: Hold on, page 2?
MR STRAKER: Item (d).
MR JUSTICE SULLIVAN: "Work done on documents", 29 hours, yes.
MR STRAKER: This is a case, obviously, where we had to prepare the documentary material. There is no documentary material put in by the Secretary of State. Frankly, we are at something of a loss as to understand how somebody could spend 29 hours working on the documents which we have looked at today. So that if that is right as a proposition, and the view is taken that something in the order of 10 hours is more appropriate, it has the consequential effect of reducing the figure to 4,266; the overall figure. That is the only criticism we make of this schedule.
MR JUSTICE SULLIVAN: Yes, 29 hours is a heck of a lot.
MR STRAKER: My Lord, yes. I cannot develop that point further.
MR JUSTICE SULLIVAN: Even if it is £87 up anyway. Miss Lieven, do you want to take some instructions about that?
MISS LIEVEN: My Lord, can I just make a few points on that. It is important that your Lordship understands that the 29 hours includes advising the clients.
MR JUSTICE SULLIVAN: Yes.
MISS LIEVEN: So it is advising the clients, and it is instructing council.
MR JUSTICE SULLIVAN: Yes.
MISS LIEVEN: The second point, my Lord, although it is easy for my learned friend to say it is a straightforward case, from somebody who comes to it completely from the outside, actually understanding what is going on in this case is quite a time-consuming business. The other points, my Lord, are that, in my submission, your Lordship, up to a point, should look at this as a global figure, which is a remarkably reasonable global figure, I suspect, compared to that which would have been put forward by the other side.
We have not seen their schedule, we therefore do not know how many hours they spent on this case. Whether that is deliberate or not, we do not know, but, my Lord, there is an inevitable offsetting, if I can put this in as tactful a way as I can, between the seniority and therefore the charge-out rate of the individual and the number of hours, and the number of hours counsel spends on a case and the number of hours that instructing solicitors spend on a case.
So it is, in my submission, a little unfair to pick and choose the bits that you like and dislike. Your Lordship may think there are some aspects of this bill which are remarkably reasonable.
MR JUSTICE SULLIVAN: Yes, I accept there is a degree of trade-off, because the Treasury Solicitors generally do such a thorough job, then counsel's load is sometimes lightened, for example. I see that and one often finds that.
MISS LIEVEN: Also, your Lordship may think that £87 an hour is an extraordinarily low rate for a solicitor bringing a bill to this court. You would certainly not be getting that from anybody other than the Treasury Solicitors. I do not want to push the point too far, my Lord, but, in my submission, there is a trade-off. If one picks every figure that is high, but does not add on to the figure that was low, then you are putting a rather unfair burden on the Treasury Solicitors. Indeed, if things were done in this way, what would end up happening is you would just get counsel's doing more work and solicitors doing less, then the bottom line goes up.
So, my Lord, I do not think I can take it any further than that. I understand that what the 29 hours was spent on was getting to grips with the facts of the case, advising the client, and then instructing me, both in conference and in this hearing.
MR JUSTICE SULLIVAN: Yes.
MR STRAKER: My Lord, I accept the bulk of what my learned friend says, in terms of the roundness, if one may put it that way, with which your Lordship ought to approach these issues. The one matter to which I would raise exception, however, is the observation that these 29 hours were spent in, for example, attending upon the client, advising the client, for that is what we see on the first page in box (d) attendance on client, and then there is a box for attendance on counsel as well.
But I do not seek to go behind the proposition that your Lordship can approach these matters with an element of --
MR JUSTICE SULLIVAN: Swings and roundabouts to a degree.
MR STRAKER: To a degree, my Lord, but when something is presented in that way, with an apparently large number of hours spent on the documents, and I appreciate it is different for someone coming into the case who did not have the benefit of sitting through five days in the London Borough of Bromley Civic Hall, I appreciate there is a difference there, but nonetheless it is an apparently over-large figure of hours, I suggest.
MR JUSTICE SULLIVAN: Yes, yes. Thank you very much. It seems to me that there is a degree of swings and roundabouts here. One has to have a look at the overall figure to see whether it is proportionate, as well as having a look at individual items. Doing that it seems to me that 29 hours might seem to be on the high side, but on the other hand, 5,919 is not too far off the mark. So, I do not think I am going to go too far wrong if I summarily assess the costs in the sum of £5,500.
MR STRAKER: My Lord, I am much obliged. My Lord, the other matter which has to be dealt with is the question of leave to appeal. My Lord, I ask for leave to appeal under both heads, that is to say, compelling reason and reasonable prospect. As far as the former is concerned I say this: that it is an important site in the London Borough of Bromley, where a very substantial construction is proposed, in the language used in the skeleton argument, "The site is touched by the hand of history." In any respectful submission that can provide a compelling reason to support leave to appeal.
In support of the reasonable prospect head, I focus, if I may, upon this matter. Your Lordship has indicated a construction of paragraphs 10 and 11, leading to the proposition that there was a planning judgment of greater weight to the immediacy of the situation, and then indicated that reasons did not need to go further than that position.
In my respectful submission, this was a planning judgment, if there was a planning judgment there being expressed, which required reasons for that planning judgment. I respectfully say, in that regard, without developing the matter further, but focusing simply on that one point, that one can say there is a reasonable prospect.
I do not take the matter further and seek to reargue matters which were argued in front of your Lordship a little while ago, and one is conscious always of being slightly invidious, your Lordship having just given judgment, then for me to say: well, there is a reasonable prospect that your Lordship has it wrong. But save taking that matter in the generality, in that way, I focus on that one point.
MR JUSTICE SULLIVAN: Yes, thank you very much. I am not satisfied that there is any compelling reason to grant permission to appeal. I understand the importance of the development, but it does not seem to me that that really amounts to a compelling reason, as it is a relatively straightforward challenge, and with all due respect to the arguments advanced, it does seem to me that there really is not a reasonable prospect of persuading the Court of Appeal that this was anything other than an exercise of planning judgment, giving greater priority to one factor rather than another. So I refuse permission.
Thank you all very much.